He violated the basic rules of the road.

He failed to yield to pedestrians. He failed to recognize that she was in the crosswalk with a walk sign in her favor.

She was walking across 23rd Street in New York City at 1st Ave.

She was on her way to work. It was early in the morning and there was a light drizzle outside. The sun had not yet come up. She arrived at the intersection and the light was red. She had to wait a few moments for the light to change green.

When the light turned green, the walk signal indicated "Walk" and that's exactly what she did. Directly within the intersection. She remembers talking a few steps, seeing headlights approach her and then waking up in the Bellevue Hospital emergency room where doctors and nurses were cutting off her clothes.

Here's what she didn't remember...

A massive Mack truck heading to a construction site in New York City was turning left from 1st Avenue onto 23rd Street. The driver had almost completed his full left turn when the front of his truck plowed into this young woman minding her own business while heading to work that morning.

He stopped immediately. The police and an ambulance were called.

The police spoke to the driver. He had no excuse. He had no explanation. He only said, according to the police report "I didn't see her."

The responding police officer noted in his police report that there are multiple "Yield to pedestrian" signs at that intersection and that this truck driver violated the New York motor vehicle rules and regulations. He failed to yield. He failed to give-way to pedestrians in the crosswalk.


X-rays of her head and arm revealed a massive fracture of her arm. She was knocked unconscious and suffered a signficant concussion. She was told she needed surgery immediately. The lacerations on her head would be stitched up in the emergency room while they were getting ready for her surgery.

After waking up from surgery hours later, she was shocked to see that her broken arm looked like an erector set. She had a hard cast. Over that cast was a flexible cling-like bandage. Coming out of her cast at the top and bottom were steel rods and connectors that made her look like some type of robot.

She was told she had an 'open reduction internal & external fixation' surgery.

She knew what that meant. She was a doctor. Simply put, an 'open reduction' surgery is one where the orthopedic surgeon must cut open the arm and then begin the process of reattaching the broken bones together.

In many instances, the surgeon will use titanium screws, pins and plates to hold the broken fragments together. That is all done internally. That part is known medically as 'internal fixation'.

Since her fracture was more severe than usual, the surgeon had no choice but to use internal fixation devices as well as external fixation devices. That explained why she had rods and connectors sticking up out of her cast. It clearly wasn't pretty.

Since she couldn't use her arm or hand, she remained out of work for the next 8 weeks.


After doing a thorough investigation to determine who was at fault, we started a lawsuit on her behalf. I personally went to the accident scene with my client and took photographs. I had her recreate her steps for me. This allowed me to 'see' what happened through her eyes and from her perspective as a pedestrian.

You will find that really smart trial attorneys will always visit the accident scene, with their client if possible, to get a personal look at what went on and get a good visual perspective. You should know that there are some lawyers who merely rely on their investigator to go to the accident scene, take photographs and then report on what they saw.

You will find that really good attorneys ALWAYS go to the accident scene at some point during the lawsuit.

After we started her lawsuit she was questioned by the attorney for the construction company and the truck driver. Other than the information I described above, she was asked many questions about her injuries.

The defense wanted to know details of what she could do before her accident, what happened to her in the hospital and importantly, what happened to her after she left the hospital. 

The defense attorney wanted to know how her injuries disabled her from her daily activities and her job.

The scarring on her forehead and back of the head were clearly visible. Those needed no explanation, although we did take photographs at various times to show the healing process and how those scars were still visible and obvious.

By the time she was questioned at this question and answer session, commonly known as a 'deposition' or 'pre-trial testimony' her cast had been removed and she was cleared to return to work. She came through with flying colors.


I knew the driver violated the rules of the road. I had proof.

I knew the truck driver had no defense to why he caused this accident.

I knew the truck driver would have to admit he violated the rules of the road. This would be a good deposition. Once that would clearly help us show that we were more likely right than wrong that the truck driver was negligent.


The defense attorney gave us many excuses.

"He's unavailable."

"We can't find him."

"We have an investigator out looking for him."

Finally, they came back with a definitive answer...

"We can't find him. He's gone," the defense attorney said.

"Well, that's not good for you" I thought. Now it was time to act on this news.


If the defendant truck driver didn't show up, how could I possibly prove that he was careless? Could I use the police report to prove our case? Could I use his non-appearance, or a better phrase is his 'disappearance' in a way that would automatically give us a win on the issue of who was responsible?

My next strategy involved me asking the court to do something it rarely does. I had to do it. The circumstances demanded it.

I asked the court to dismiss the defendant's answer and award us a 'default judgment' on the issue of who is responsible for the truck accident.

Let me explain...

When we start a lawsuit, we deliver to the careless driver and his company a set of allegations. That paper is known as a 'Complaint'. In it we allege that the truck driver and the company he worked for were careless and that that carelessness was a cause of my client's injuries. 

To get technical, we argue that the people we have sued were negligent. We also argue that their negligence was a substantial factor in causing and contributing to my client's injuries. That's known as 'causation' and 'damages'.

Now the attorney who represents the truck driver and trucking company must respond to our allegations. The document they send to us is known legally as an 'answer'. Seems kind of obvious, right?


I needed to ask the court to dismiss the trucking company's answer.

Now, why would I do that?

I did that because we were now at a disadvantage. The truck driver is required to come and give pre-trial testimony during the court of this lawsuit. If he fails to show up, there has to be some severe remedy that tips the scales in our favor. Otherwise, people who are sued in civil lawsuits would simply ignore their requirement to show up and give pre-trial testimony and all injured victims would be at a significant disadvantage when trying to prove their accident cases here in NY.

If the judge agreed with me and he 'struck the defendant's answer' that means we'd get an automatic win on the issue of who was responsible for this accident. Let me give you a great example of this.


It's the playoffs. The Mets are playing against the Yankees. It could mean another subway series. The Mets show up at Yankee Stadium and the Yankees baseball team is nowhere to be found. In fact, they decided not to show up. Who knows why.

What happens when one team shows up for a game and the other doesn't?

You guessed it! The team that showed up gets an automatic win. That's known as a default. The Yankees defaulted their game.

The same thing happens when a judge strikes the answer of one of the people or companies you have sued.


Remember when I said the courts don't like to grant this too often?

Well, the judge gave the defense attorney multiple attempts to again track down their client. Not just once. Not twice but three additional times to try and track him down. Three months later when the defense still couldn't located the truck driver, the court realized he'd have no choice but to agree to strike the defense's answer.

I obtained the court order that struck the defense's order and delivered it to the defense attorney.


In a civil lawsuit, since we are required to show that we are more likely right than wrong that the driver and his company were careless and that the driver's negligence caused and/or contributed to my client's injuries, we now only had to have a trial on damages.

You see, when the judge granted my request to dismiss the defense's answer it meant we no longer had to prove liability or causation. It was automatically assumed that we had proven that.

The only thing left to do in this case was have a trial to determine how much compensation my client would be entitled to receive because of the carelessness of this disappearing truck driver.

The court gave us a date to appear for jury selection and shortly before that date, the defense agreed to begin negotiations that ultimately led to a settlement prior to a trial about her injuries.



Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer